N.Y. Criminal Procedure Law § 440.46: Motion for resentence; certain controlled substance offenders

§ 440.46 Motion for resentence; certain controlled substance offenders.

1. Any person in the custody of the department of corrections and

community supervision convicted of a class B felony offense defined in

article two hundred twenty of the penal law which was committed prior to

January thirteenth, two thousand five, who is serving an indeterminate

sentence with a maximum term of more than three years, may, except as

provided in subdivision five of this section, upon notice to the

appropriate district attorney, apply to be resentenced to a determinate

sentence in accordance with sections 60.04 and 70.70 of the penal law in

the court which imposed the sentence.

2. As part of any such application, the defendant may also move to be

resentenced to a determinate sentence in accordance with section 70.70

of the penal law for any one or more class C, D, or E felony offenses

defined in article two hundred twenty or two hundred twenty-one of the

penal law, the sentence or sentences for which were imposed by the

sentencing court at the same time or were included in the same order of

commitment as such class B felony.

3. The provisions of section twenty-three of chapter seven hundred

thirty-eight of the laws of two thousand four shall govern the

proceedings on and determination of a motion brought pursuant to this

section; provided, however that the court's consideration of the

institutional record of confinement of such person shall include but not

be limited to such person's participation in or willingness to

participate in treatment or other programming while incarcerated and

such person's disciplinary history. The fact that a person may have been

unable to participate in treatment or other programming while

incarcerated despite such person's willingness to do so shall not be

considered a negative factor in determining a motion pursuant to this

section.

4. Subdivision one of section seven hundred seventeen and subdivision

four of section seven hundred twenty-two of the county law, and the

related provisions of article eighteen-A of such law, shall apply to the

preparation of and proceedings on motions pursuant to this section,

including any appeals.

5. The provisions of this section shall not apply to any person who is

serving a sentence on a conviction for or has a predicate felony

conviction for an exclusion offense. For purposes of this subdivision,

an "exclusion offense" is:

(a) a crime for which the person was previously convicted within the

preceding ten years, excluding any time during which the offender was

incarcerated for any reason between the time of commission of the

previous felony and the time of commission of the present felony, which

was: (i) a violent felony offense as defined in section 70.02 of the

penal law; or (ii) any other offense for which a merit time allowance is

not available pursuant to subparagraph (ii) of paragraph (d) of

subdivision one of section eight hundred three of the correction law; or

(b) a second violent felony offense pursuant to section 70.04 of the

penal law or a persistent violent felony offense pursuant to section

70.08 of the penal law for which the person has previously been

adjudicated.